Posted by: johnocunningham | May 9, 2010

Social Media: Ethics Questions

As law firms gear up their social media strategies, more and more state bars are offering rules, interpretive comments, and advisory opinions concerning the fair use of electronic communication tools.

The potential issues associated with social media utilization are not a reason to ignore the forums in which more than 50 percent of Internet users  now participate.  But they do present a good reason for law firms to ask at least one employee to become the social media “guru” familiar with relevant rules in jurisdictions where the firm has a presence.

In-house ethical experts should be prepared to give relevant advice and answer the following questions: 

1. Is the firm required to file any of its lawyers’ electronic publications as “solicitations” or “advertising” under the applicable rules of any state bar having advertising review committees?

2. Are any of our electronic postings crossing boundaries that some state bars use to prohibit representations of “expertise” or “specialty” or “special competence”?

3. Do any of our electronic postings cross the line between “puffing” and the dissemination of misinformation?

4. Do our lawyers utilize or benefit from the “recommendation” features facilitated by various forms of social media? And if so, do those recommendations go beyond the offering of verifiable information and cross into subjective “testimonials” that are regulated or prohibited by some state bars? 

5. Do our lawyers use social media to post analysis related to a particular occurrence or event? If so, that use might be permissible as educational commentary, but it will be necessary to avoid any comments that could appear to be event-related solicitations, which are often prohibited.

6. Do any of our electronic postings border on breaches of confidentiality? You might want to consider offering some in-house training on how easily this could occur or otherwise be avoided.

7. Are you following record relevant retention rules with respect to electronic postings that could constitute advertisements to the public?

 Of course, one of the biggest questions and perhaps the hardest to answer is: “Which jurisdictions have a right to regulate our electronic postings?” Cyberspace theoretically touches all corners of the globe, but obviously your firm is not practicing in all jurisdictions and likely does not even have minimum contacts with most. Your in-house expert should be prepared to wrestle with that question.

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